The Idaho Court of Appeals found the array to be unduly suggestive, but held that Mackley's identification was "sufficiently reliable to outweigh the low level of suggestiveness in the identification procedures." State v. Gray, 129 Idaho 784, 798, 932 P.2d 907, 921 (Ct. App. 1997). The federal district court in its decision on habeas review tracked the reasoning of the state appeals court.
The Idaho Court of Appeals found the array to be unduly suggestive, but held that Mackley's identification was "sufficiently reliable to outweigh the low level of suggestiveness in the identification procedures." State v. Gray, 129 Idaho 784, 798, 932 P.2d 907, 921 (Ct.App. 1997). The federal district court in its decision on habeas review tracked the reasoning of the state appeals court.
A trial court's decision on a motion to change venue is discretionary in nature. State v. Gray, 129 Idaho 784, 800, 932 P.2d 907, 923 (Ct. App. 1997). Error in regard to a trial court's denial of a motion for change of venue cannot be predicated on the mere existence of pretrial publicity concerning a criminal case.
"[T]he denial of a motion in limine generally preserves an issue for appeal." State v. Gray, 129 Idaho 784, 793, 932 P.2d 907, 916 (Ct. App. 1997). If the trial court unqualifiedly denies a motion in limine, the party opposing the evidence's admissibility is not required to object to the evidence again at trial to preserve the issue for appeal.
A trial court's decision on a motion to change venue is discretionary in nature. State v. Gray, 129 Idaho 784, 800, 932 P.2d 907, 923 (Ct. App. 1997). Error in regard to a trial court's denial of a motion for change of venue cannot be predicated on the mere existence of pretrial publicity concerning a criminal case.
Idaho courts have applied this test as a two-step process. See State v. Hoisington, 104 Idaho 153, 162, 657 P.2d 17, 26 (1983); State v. Gray, 129 Idaho 784, 796-97, 932 P.2d 907, 919-20 (Ct.App. 1997), review denied, cert denied ___ U.S. ___, 118 S.Ct. 81 (1997); State v. Alger, 115 Idaho 42, 45 n. 2, 764 P.2d 119, 122 n. 2 (Ct.App. 1988). First, we consider whether the out-of-court identification procedure was suggestive based upon the totality of the circumstances.
Furthermore, in State v. Gray, the court found that an inaccurate description of the suspect did not preclude a later identification from being reliable. 129 Idaho 784, 797, 932 P.2d 907, 920 (Ct. App. 1997.) Hust recalled drinking approximately six to eight beers and two shots of liquor prior to the shooting.
For example, "the denial of a motion in limine generally preserves an issue for appeal." State v. Gray, 129 Idaho 784, 793, 932 P.2d 907, 916 (Ct. App. 1997). If the trial court unqualifiedly denies a motion in limine, the party opposing the evidence's admissibility is not required to object to the evidence again at trial to preserve the issue for appeal.
A trial court's decision on a motion to change venue is discretionary in nature. State v. Gray, 129 Idaho 784, 800, 932 P.2d 907, 923 (Ct.App. 1997). Error in regard to a trial court's denial of a motion for change of venue cannot be predicated on the mere existence of pretrial publicity concerning a criminal case.
No objection was ever made by Lovelass to the court's questioning. Where a defendant fails to voice such an objection at trial, however, this Court will only review a judge's questioning for fundamental error. See, e.g., State v. Gray, 129 Idaho 784, 798, 932 P.2d 907, 921 (Ct.App. 1997) ("A fundamental error may be reviewed on appeal even absent a timely objection."). Lovelass argues that the court's questions constituted an attempt to impeach him and because neither an objection nor jury instruction could remove the prejudice resulting therefrom, the questioning constitutes fundamental error that requires reversal of his conviction.